The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 12, 2019
2019COA142
No. 13CA1435, People v. Burnell — Constitutional Law — Due
Process — Sixth Amendment — Right to Be Present at Trial;
Juries — Conduct Affecting Juries — Harmless Error
In this case, the trial court had informed counsel and the
defendant that they should stay within fifteen to twenty minutes of
the courthouse while the jury deliberated. The jury returned a
verdict on the morning of the third day of deliberations. When the
defendant still had not arrived after approximately forty minutes,
the trial court — without ever conducting an inquiry into the cause
of the absence — deemed the absence to be voluntary and received
the verdict in open court. A division of the court of appeals
concludes that the trial court erred in doing so, but that in the
absence of some indication that there was a conflicted juror, the
error was harmless beyond a reasonable doubt.
COLORADO COURT OF APPEALS 2019COA142
Court of Appeals No. 13CA1435
Mesa County District Court No. 12CR1299
Honorable Brian J. Flynn, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Paul Joshua Burnell,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE TOW
Richman and Harris, JJ., concur
Announced September 12, 2019
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Paul Joshua Burnell, appeals his convictions for
third degree assault of an at-risk victim and harassment. We
affirm.
I. Background
¶2 Burnell was living with his parents, John and Arline Burnell,1
when he got into an argument with John. As the argument went
on, John told him to leave and threatened to call the police if he did
not. Burnell then took the phone from John, grabbed him by the
wrists, and made him sit down on their couch. John, who takes
medication that causes him to bruise easily, was left with bruised
and cracked skin where Burnell had grabbed him. After spending
approximately thirty minutes yelling at John, Burnell gathered
some of his belongings and left the house.
¶3 John then drove to the park to pick up Arline and tell her
what had happened. John and Arline did not immediately call the
police, though they had some concern for their safety. Instead, they
discussed the matter and first called one of Arline’s colleagues, a
1Because John and Arline Burnell share a surname with the
defendant, we refer to them by their first names — and defendant
by his surname.
1
psychiatrist and psychologist who was familiar with Burnell, to seek
outside input. Several hours after Burnell had left, they called the
police and reported the incident.
¶4 Burnell was ultimately convicted of third degree assault of an
at-risk victim and harassment, and sentenced to three years of
supervised probation. He now appeals, contending that the trial
court (1) violated his right to be present when it took the verdict in
his absence; (2) erroneously admitted evidence that a medical
professional recommended that his parents report him to the police;
(3) inadequately responded to a jury question; and (4) improperly
denied his motion for a mistrial when the prosecutor referred to his
exercise of his Fifth Amendment right to remain silent. We address
each contention in turn.
II. Right to be Present
¶5 We are first asked to consider whether the trial court
committed reversible error by taking the verdict while Burnell was
not present. We conclude that while it was improper to proceed
under the circumstances, the error was harmless.
2
A. Applicable Law and Standard of Review
¶6 “Article II, section 16, of the Colorado Constitution, and the
Due Process Clause, as well as the Sixth Amendment to the United
States Constitution, guarantee the right of a criminal defendant to
be present at all critical stages of the prosecution.” People v. White,
870 P.2d 424, 458 (Colo. 1994). The United States Supreme Court
has held that this right applies “from the time the jury is impaneled
until its discharge after rendering the verdict.” Shields v. United
States,
273 U.S. 583, 589 (1927).
¶7 This right, however, may be waived either expressly or through
the conduct of the defendant such as by voluntarily failing to
appear after trial has commenced. People v. Janis,
2018 CO 89, ¶
17 (citing Taylor v. United States,
414 U.S. 17, 19 n.3 (1973)).
Indeed, the Colorado Rules of Criminal Procedure state that if a
defendant has “[v]oluntarily absent[ed] himself after the trial has
commenced, whether or not he has been informed by the court of
his obligation to remain during the trial,” the trial court shall
consider the defendant to have waived his right to be present, and
the trial court may at its discretion proceed with the trial. Crim. P.
43(b)(1).
3
¶8 Whether proceeding with trial in the absence of the defendant
was appropriate, then, rests on whether the trial court correctly
determined that the defendant waived his right to be present by
voluntarily absenting himself. Whether this absence was a waiver of
Burnell’s right to be present is a constitutional question that we
review de novo. Zoll v. People, 2018 CO 70, ¶ 15. Where preserved,
error in the denial of a defendant’s right to be present is reviewed
for constitutional harmless error. Rushen v. Spain,
464 U.S. 114,
117-20 (1983); Zoll, ¶ 16. Under this test, constitutional error
requires reversal unless the People can “prove beyond a reasonable
doubt the absence of any reasonable possibility that the error might
have contributed to the conviction.” James v. People,
2018 CO 72,
¶ 19.
B. Relevant Facts
¶9 On May 7, 2013, the court heard closing arguments, and the
jury began to deliberate. At that time, the court told the parties and
counsel that if they “could just stay within 15 or 20 minutes of the
courthouse, it[’]s helpful to us.” The court explained that it would
keep the attorneys updated as to whether the jury wanted “to stay
4
through the evening, if they’re gonna come back tomorrow, what
time, if they order dinner, all those things.”
¶ 10 Two days later, at 8:35 in the morning, the jury notified the
court that it had reached a verdict. The court contacted the
attorneys, but by 9:09, Burnell had yet to arrive at the courtroom.
The court asked the defense attorney whether there was “any
reason to wait any longer,” and defense counsel explained that
“someone from [her] office reached [Burnell] very shortly after [they]
got the word that the verdict had come in” and that he wanted to be
present for the verdict and was on his way.
¶ 11 After a five-minute delay, defense counsel informed the court
that she had called Burnell, but he did not answer his phone. She
explained that she had called her office to confirm that Burnell had
said he was on his way, and told the court she did not know why he
was not there yet. The court then made the following findings:
Okay. I am finding that Mr. Paul Burnell, the
Defendant, was given notice that we had a
verdict and that he’s been given sufficient time
to get here for the verdict. I did ask the parties
to be 15 or 20 minutes from the courthouse if
we were to receive a verdict. It’s now been 40
minutes, I believe, since those notifications
went out, and we’ve had a jury waiting, so I’ll
be proceeding with the taking of the verdict in
5
absentia of Mr. Burnell given that I find that
he’s given up his right to be present for the
verdict since he was notified and there’s — he’s
been given — or given us no reason not to
proceed.
¶ 12 The court called the jury in and heard the verdict.
Immediately afterward, the court ordered Burnell’s bond forfeited
and issued an arrest warrant. Burnell arrived in the courtroom, it
appears, while the court was in the process of doing so. The court
did not attempt to determine why Burnell had arrived late.
C. Analysis
¶ 13 On appeal, the People argue that the simple fact that Burnell
was required to be within fifteen to twenty minutes of the
courthouse but failed to arrive within forty minutes is sufficient to
determine his absence was voluntary. We disagree.
¶ 14 In order to proceed in Burnell’s absence, the trial court was
required to first find that Burnell was voluntarily absent. On its
face, then, the mere fact that Burnell was absent at a time he was
required to be present, without more, is insufficient to find a waiver
of his right to be present. See United States v. Beltran-Nunez, 716
F.2d 287, 291 (5th Cir. 1983) (A defendant’s right to be present at
trial “cannot cursorily, and without inquiry, be deemed by the trial
6
court to have been waived simply because the accused is not
present when he should have been.”).
¶ 15 Unfortunately, the trial court made no attempt to determine
whether Burnell’s absence was voluntary. Having been informed
that Burnell wanted to be present and was on his way, the court
instead relied on the fact that Burnell had “given [the court] no
reason not to proceed,” in effect requiring Burnell, or his attorney,
to demonstrate that his absence was involuntary in order to
preserve his right to be present.
¶ 16 Whether an absence is voluntary may, of course, be inferred
from the circumstances. In People v. Trefethen, the defendant had
informed the court that he was experiencing car problems. 751
P.2d 657, 658 (Colo. App. 1987). After waiting for two hours, the
court considered a number of factors — that the defendant’s last
known address was within walking distance of the courtroom, that
he did not suffer from physical impairments, and that he made no
attempt to secure alternative transportation — in determining that
the defendant was voluntarily absent.
Id. at 659.
¶ 17 Here, by contrast, the court made no inquiries into Burnell’s
circumstances. Indeed, the only other information the trial court
7
had was that Burnell was on his way. Rather than attempt to
ascertain the cause of Burnell’s tardiness, the trial court merely
assumed that an unexplained absence must necessarily be a
voluntary absence. Thus, the trial court erred.
¶ 18 However, this violation clearly did not contribute to Burnell’s
conviction. When the court elected to proceed in Burnell’s absence,
the jury had already arrived at its verdict. The only remaining steps
were for the jury to deliver the already-completed verdict forms to
the court and for the verdict to be read aloud in open court.
¶ 19 Burnell argues that the denial of his right to be present when
the jury returned its verdict prevented him from requesting the
court to poll the jury, or at least from assisting his attorney in
making the decision to do so. Citing a decision by the Supreme
Court of Alaska, Burnell suggests that “requiring each juror to
assume the burden of his decision and affirm it in the defendant’s
presence” could cause a juror to hesitate or alter his or her
decision. Lee v. State, 509 P.2d 1088, 1094 (Alaska 1973).
¶ 20 Under the common law, in conducting a poll of the jury the
court’s “object is to ascertain for a certainty that each of the jurors
approves of the verdict as returned; that no one has been coerced or
8
induced to sign a verdict to which he does not fully assent.”
Humphries v. District of Columbia, 174 U.S. 190, 194 (1899).
Though Colorado has since codified the right to seek a poll of the
jury in Rule 31(d) of the Colorado Rules of Criminal Procedure, this
goal remains the same. See People v. Auman,
67 P.3d 741, 767
(Colo. App. 2002) (suggesting that the purpose of polling the jury is
to verify the verdict in a situation free of jury-room coercion), rev’d
on other grounds,
109 P.3d 647 (Colo. 2005).
¶ 21 Here, any suggestion that a poll of the jury could have altered
the outcome is wholly speculative. Notably, the defense attorney,
who was certainly in a position to assess whether a jury poll might
have been beneficial, did not request one. There is nothing in the
record, or even asserted on appeal, to suggest that the jury’s verdict
was the result of coercion, and we have no reason to believe that
any juror, having arrived at a verdict, was likely to have renounced
his or her decision upon questioning by the court. To reverse, as
Burnell urges us to do, on the mere possibility that a poll in the
presence of a defendant would have a different outcome from a poll
in his or her absence would require reversal in every case in which
9
the defendant was absent, but not voluntarily so, when the verdict
was received.
¶ 22 Of course, we recognize that it is not Burnell’s burden to
demonstrate harm here. Rather, the People must prove
harmlessness of constitutional error beyond a reasonable doubt.
James, ¶ 19. However, we conclude that demonstrating
constitutional harmlessness does not require dispelling wholly
speculative concerns. See COLJI-Crim. E:03 (2018) (defining
“reasonable doubt,” in part, as “not a vague, speculative or
imaginary doubt”).
¶ 23 It is important to note that we do not suggest that receiving a
verdict in a defendant’s nonvoluntary absence will always be
harmless beyond a reasonable doubt. To do so would essentially
convert the delivery of the verdict into a noncritical stage. On the
other hand, reversal based on the mere possibility that a polled
juror would waver in his or her commitment to the verdict could be
tantamount to a decision that the error would never be harmless —
essentially making this a structural error. There is no legal support
for such a bright line rule on either end of the spectrum.
10
¶ 24 Rather, in our view, a reasonable possibility that the error
might have contributed to the verdict arises when the record
demonstrates some basis for concern that there may have been a
reluctant or holdout juror. This may be indicated, for example, by a
particular juror’s tone or demeanor while responding to a jury poll,
the existence of jury questions that reflect juror reluctance, or the
need during deliberations to provide a “modified Allen” instruction
in the face of a deadlock. 2 Because nothing in the record suggests
any juror was conflicted in this case, we discern no reasonable
possibility that Burnell’s absence contributed to the verdict. 3
III. CRE 403
¶ 25 Burnell next argues that the trial court erred when it allowed
the prosecution to introduce evidence that Arline consulted with a
mental health professional before deciding to call the police.
2 A “modified Allen” instruction may be given to a deadlocked jury in
an effort “to encourage jurors to reach a verdict without coercing
them into doing so.” Gibbons v. People, 2014 CO 67, ¶ 1 (citing
Allen v. People,
660 P.2d 896, 898 (Colo. 1983)).
3 We note that the jury apparently deliberated for approximately a
day and a half, while the presentation of evidence took slightly less
than a day. On the facts of this case, we do not consider the length
of deliberations alone sufficient to create a reasonable doubt about
the harmlessness of the error.
11
Burnell contends that the evidence was not relevant and, even if it
had been, any probative value was substantially outweighed by the
danger of unfair prejudice. We perceive no error.
¶ 26 We review the trial court’s evidentiary rulings for an abuse of
discretion. People v. Russell, 2014 COA 21M, ¶ 22, aff’d,
2017 CO
3. A trial court abuses its discretion if its ruling is manifestly
arbitrary, unreasonable, or unfair.
Id.
¶ 27 Relevant evidence is “evidence having any tendency to make
the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” CRE 401.
¶ 28 At trial, Burnell argued that John “wanted a reason to kick
[him] out of the house” and “was frustrated that his 33-year-old son
was still living at home.” The prosecution argued that evidence that
John and Arline sought outside input, therefore, was relevant to
demonstrate their motive for calling the police.
¶ 29 But even relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice . . . .” CRE 403. Burnell contends that it was, asserting
that the evidence injected consideration of mental illness into the
12
case and created the impression that a medical professional familiar
with Burnell believed that he was a danger. We are unconvinced.
¶ 30 The evidence introduced at trial was that Arline called a
colleague — who was both a psychiatrist and a psychologist — who
was familiar with Burnell, and that he recommended she call the
police. There was no testimony that the colleague believed Burnell
was dangerous. Nor was there testimony that Burnell had ever
been diagnosed or treated by the colleague — or by anyone else.
¶ 31 In light of this testimony, we cannot say that the trial court
acted arbitrarily, unreasonably, or unfairly in admitting the
evidence.
IV. Jury Questions
¶ 32 We now turn to Burnell’s contention that the trial court did
not properly respond to a question from the jury during
deliberations. We perceive no error.
A. Background
¶ 33 During deliberations, the jury submitted a question to the
court asking “Could we have a definition of third degree assault?”
The court initially suggested a response directing the jury to
instruction number ten, which listed the elements of the crime.
13
Both the prosecutor and defense counsel said that they believed
that was an appropriate response.
¶ 34 In preparing the new instruction, the court noticed that
instruction number nine, defining the elements of assault in the
third degree on an at-risk adult, referred to “third degree assault as
described in instruction number 10,” but instruction number 10
listed the “elements of the crime of assault in the third degree.”
¶ 35 Believing that the alternative phrasing prompted the jury’s
confusion, the court provided the following response:
Jury Instruction 9, paragraph 3, refers to
“third degree assault” as described in
instruction 10 (“assault in the third degree”).
The offenses of “third degree assault” and
“assault in the third degree” are the same.
Therefore, you are referred to Jury Instruction
10 which contains the elements for the offense
of “third [de]gree assault” (also known as
“assault in the third degree.”).
Burnell’s counsel stated that he had no objection.
B. Analysis
¶ 36 Whether to provide additional instructions in response to a
question from the jury is left to the sound discretion of the trial
court. People v. Bass, 155 P.3d 547, 552 (Colo. App. 2006).
14
Because Burnell did not object to the trial court’s instruction, we
review for plain error. Id. at 551.
¶ 37 Absent a showing to the contrary, we presume that the jurors
understood the court’s instructions. People v. Fell,
832 P.2d 1015
(Colo. App. 1991). But when a jury “affirmatively indicates that it
has a fundamental misunderstanding of an instruction it has been
given, the basis for a presumption that the jury understands the
instruction disappears.” Leonardo v. People,
728 P.2d 1252, 1255
(Colo. 1986). In such cases, the trial court should “give appropriate
additional instructions in response to the jurors’ request unless: (i)
the jury may be adequately informed by directing their attention to
some portion of the original instructions . . . .”
Id. (quoting III ABA
Standards for Criminal Justice § 15-4.3(a) (2d ed. 1980)).
¶ 38 Here, the jury did not express confusion about the content of
instruction number ten, defining assault in the third degree.
Rather, the jury indicated that it believed it did not have an
instruction defining third degree assault. The trial court’s response
properly directed the jury to the appropriate instruction and
informed the jury that assault in the third degree and third degree
assault refer to the same crime.
15
¶ 39 Further, even if the jury had some underlying confusion about
the content of instruction number ten, the court’s response made
clear that it was only addressing an inconsistency between
instruction numbers nine and ten. This highly specific response
was not likely to discourage the jury from seeking further
clarification if it so desired. Accordingly, we perceive no error in the
trial court’s response.
V. Motion for Mistrial
¶ 40 Finally, we address Burnell’s claim that the trial court erred
when it denied Burnell’s motion for a mistrial after the prosecutor,
in his opening statement, improperly referred to Burnell’s
invocation of his Fifth Amendment rights. Again, we perceive no
error.
A. Background
¶ 41 In his opening statement, the prosecutor described the
circumstances of Burnell’s arrest. He explained that when an
officer asked Burnell about the incident, Burnell admitted that he
and his father had argued and that his father was in fear of him,
but he denied that he had ever hurt his father. The prosecutor then
16
stated, “After a couple more questions, [Burnell] did invoke his Fifth
Amendment rights.”
¶ 42 Burnell’s counsel immediately objected and moved for a
mistrial. After some discussion, the trial court denied the motion
for a mistrial and instead elected to give a curative instruction:
It was improper for the prosecutor to have
referred to Mr. Burnell’s assertion of his Fifth
Amendment right to remain silent, as the
Defendant is never compelled to speak to the
police and the fact that he does cannot be
used as an inference of guilt and should not
prejudice him in any way. You are again
reminded that opening statements are not
evidence. You are instructed to disregard the
prosecution’s reference to Mr. Burnell’s
assertion of his Fifth Amendment right to
remain silent.
B. Standard of Review
¶ 43 The decision to grant or deny a motion for mistrial is left to the
sound discretion of the trial court. People v. Santana, 255 P.3d
1126, 1130 (Colo. 2011). In such circumstances, we will not
disturb the trial court’s decision absent a clear showing of an abuse
of discretion and prejudice to the defendant.
Id.
¶ 44 Where the underlying violation is of constitutional dimension
and the mistrial motion was made at the time of the violation, we
17
review an erroneous denial of the motion for constitutional
harmless error. People v. Santana, 240 P.3d 302, 309 (Colo. App.
2009), rev’d on other grounds,
255 P.3d 1126 (Colo. 2011).
C. Analysis
¶ 45 It is well established that “the prosecution may not refer to a
defendant’s exercise of his Fifth Amendment right to remain silent
in the face of accusation.” People v. Key, 185 Colo. 72, 75,
522 P.2d
719, 720 (1974). But not every reference to a defendant’s exercise
of the right to remain silent requires reversal.
Id. Reversal is only
required where the prosecutor’s comment on the defendant’s
exercise of the right creates an inference of guilt or where the
prosecutor argues that the defendant’s silence constituted an
implied admission of guilt. People v. Ortega,
198 Colo. 179, 183,
597 P.2d 1034, 1036 (1979); People v. Cornelison,
44 Colo. App.
283, 286,
616 P.2d 173, 176 (1980).
¶ 46 Here, the prosecutor stated that Burnell answered several
questions, and then chose to exercise his right to remain silent. In
reciting this sequence of events, the prosecutor did not directly
18
argue that Burnell’s silence reflected guilt. 4 Nor did he provide any
detail about the specific questions Burnell refused to answer.
Nevertheless, we perceive no valid reason for the prosecutor to have
mentioned Burnell’s invocation of his right to remain silent.
¶ 47 This conclusion, however, does not end the inquiry. The issue
on appeal is not whether the prosecutor engaged in misconduct, for
he undeniably did. Rather, the issue is whether the trial court
erred in electing to provide a curative instruction instead of
granting a mistrial. We conclude it did not.
¶ 48 “A mistrial is a drastic remedy and is warranted only if the
prejudice to the accused is too great to be remedied by other
means.” People v. Rosa, 928 P.2d 1365, 1372 (Colo. App. 1996).
Where a curative instruction is sufficient to remedy any prejudice, a
prosecutor’s improper comment on a defendant’s silence does not
necessitate a mistrial. See id.; see also People v. Rivera,
968 P.2d
1061, 1067 (Colo. App. 1997) (declining to reverse where the trial
court sustained the defendant’s objection to the prosecutor’s
4 We acknowledge that several statements made by the prosecutor
outside of the hearing of the jury suggest that he may have
intended to make an improper argument. However, no such
argument was ever made to the jury.
19
comment during closing argument and instructed the jury to
disregard the comment).
¶ 49 The prosecutor’s comment during his opening statement was
brief and not repeated. The context of the comment was not so
detailed as to suggest to the jury that Burnell stopped being willing
to talk as soon as his answers to the officer’s questions became
incriminating. And the court provided a curative instruction that
reminded the jury that the prosecutor’s statement was not evidence,
informed the jury that Burnell was not required to speak to the
police that evening, admonished the jury not to draw any inference
of guilt from the silence, and directed the jury to disregard the
statement. Importantly, the trial court’s curative instruction
explicitly told the jury that it was improper for the prosecution to
even mention the matter.
¶ 50 For these reasons, in our view, the prosecutor’s comment did
not so prejudice Burnell as to warrant a mistrial.
VI. Conclusion
¶ 51 The judgment is affirmed.
JUDGE RICHMAN and JUDGE HARRIS concur.
20
